Statelessness in Practice: Implementation of the UK Statelessness Application Procedure

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STATELESSNESS IN PRACTICE:

IMPLEMENTATION OF THE UK

STATELESSNESS APPLICATION PROCEDURE

Johanna Bezzano and Judith Carter

3 July 2018

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Acknowledgements

This report has been written by Jo Bezzano with assistance from Judith Carter. They are both in-house solicitors and lecturers at the Liverpool Law Clinic.

We are grateful to the Strategic Legal Fund which funded the early part of the work described here; a trust fund that supported our work for two years and prefers to remain anonymous, and to the University of Liverpool School and Law and Social Justice for their support for the Law Clinic and this project. We have also worked closely with Cynthia Orchard of Asylum Aid.

We also acknowledge the ongoing support of our Law Clinic colleagues, Elaine Brand, Jared Ficklin, Dominque Mansley and Dr Sarah Woodhouse.

We thank University of Liverpool Law students Anmar Alghadhanfari and Mansour Elkehya for many hours of excellent Arabic interpreting and for help with editing this report.

Throughout the project Mike Wakefield and his colleagues at DLA Piper Middle East LLP contributed advice notes on relevant legal provisions in Gulf states. These have been very useful and we are grateful to DLA Piper for their specialist assistance.

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Statelessness in Practice: Implementation

of the UK Statelessness Application

Procedure

1 Background and objectives of the research

In 2013 the Liverpool Law Clinic began its work on assisting people who are stateless and at risk of statelessness. There were several reasons for doing so.

Firstly, the Home Office introduced a procedure in April 2013 for people to request leave to remain in the UK on the basis that they are stateless1_{and not admissible to any other country.}2_{It was clear}

that there was a gap in provision of legal advice and assistance to people in this area. Advice and representation on statelessness was outside scope of legal aid and in the first few years after the enactment of the Legal Aid Sentencing and Punishment of Offenders Act 20123_{it was almost}

impossible to get discretionary legal aid by way of a grant of exceptional case funding.

Secondly, the Law Clinic is part of the University of Liverpool School of Law and Social Justice. We teach law students though ‘enquiry-based learning’.4_{Students work on real cases under the}

supervision of one of the Clinic lawyers. Four of the Clinic lawyers are immigration and asylum lawyers and the Clinic has a speciality in this area which is consistent with the social justice ethos of the Department. There is a synergy between our expertise, an identified need, and the opportunity to provide an interesting and informative clinical educational experience for our students.

Thirdly, the statelessness team at the Home Office is based in Liverpool and in this means that the Law Clinic is well placed to assist people at statelessness interviews. We have also been able to develop a constructive policy dialogue with the statelessness operations and policy teams and have met with them on a regular basis to discuss issues arising from the procedure.

The Law Clinic has continued its work on statelessness cases since the inception of the procedure. With others (Asylum Aid/Migrants Resource Centre,5_{the Immigration Law Practitioners Association}6

and the European Network on Statelessness7_{) we are involved with policy work on statelessness.}

This has included regular meetings with Home Office officials to discuss the implementation of the procedure. We have found these useful and constructive and look forward to this dialogue

continuing. We made a joint submission to the United Nations Universal Periodic Review of states’ human rights records in May 2017. The recommendations we set out addressed lack of legal aid, lack of an appeal right, which resulted in three statelessness-related recommendations being made to the UK government.8

1_{Convention Relating to the Status of Stateless Persons 1954}

http://www.unhcr.org/uk/un-conventions-on-statelessness.html. With reference to the definition in the 1954 Convention on the Status of Stateless Persons, adopted in the UK Immigration Rules, Part 14.

2_{Immigration Rules, Part 14}

3_{Legal Aid, Sentencing and Punishment of Offenders Act 2012, Paras 22-32, Part 1, Sch. 1}

http://www.legislation.gov.uk/ukpga/2012/10/contents/enacted

4_{Peter Kahn, Karen O'Rourke, ‘Guide to Curriculum Design: Enquiry-Based Learning’ (2018) Research}

Gate https://www.researchgate.net/publication/242281830_Guide_to_Curriculum_Design_Enquiry-Based_Learning accessed 14.6.2018

5_{See https://www.migrantsresourcecentre.org.uk/} 6_{See http://www.ilpa.org.uk/}

7_{See https://www.statelessness.eu/}

8_{‘Getting Statelessness on the Agenda at the Universal Periodic Review’ (Asylum Aid, 2017) See}

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https://www.upr-5

In 2016 the Law Clinic obtained funding from the Strategic Legal Fund9_{to undertake dedicated}

casework research. We have also been supported by another anonymous donor to enable the casework project to continue for two and a half years. This support has meant that we have broadened our casework considerably and developed a better understanding of trends and

developments in statelessness cases. We have been able to bring together our policy and casework and we hope to continue to do this in the future.

With the help of grant funding, we have made or assisted with 33 statelessness applications over the past two years. We have received eight grants and two refusals. 23 applications remain outstanding. The specific examples in this report draw on the decisions made by the Home Office in the cases taken on over the course of the project. We also have some examples of refusals that clients had already received from the Home Office when they approached the Law Clinic. In one of these cases an existing refusal was challenged with a Pre Action Protocol letter and statelessness leave

subsequently granted. In another, we made a new application and the Home Office granted statelessness leave. General examples draw on the Law Clinic’s experience of Home Office decision making since 2013. We believe that we have the largest caseload relating to statelessness leave applications.

This report details some of our findings on how the procedure is working, including systemic problems and our recommendations as to how they might be resolved. We hope that it will be useful to policy makers, legal practitioners and people affected by statelessness. We hope that it will encourage more people to make statelessness leave applications where appropriate to do so and to stimulate further change.

info.org/sites/default/files/document/united_kingdom/session_27_-_may_2017/js8_upr27_gbr_e_main.pdf (accessed 27 June 2018)

9_{See http://www.strategiclegalfund.org.uk/}

A child’s eye view of statelessness leave

I waited and waited but suddenly someone came and gave us a special post. It was the Iqama [Arabic word for ID card]….. I was over the moon. I felt a free bird and so happy.

I can still go to school and draw more pictures.

I can go swimming and go round the world.

I can visit my nanny and grandpa and cousins.

I dream to see them one day and you too.

Thank you for helping my family. You’re so kind and lovely. I want to be a teacher and help cute children.

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2 Introduction and key challenges

The UK adopted the United Nations Convention relating to the Status of Stateless Persons in April 1959 (‘the Convention’).10_{The Convention provides protection by way of specified rights to persons}

who are ‘not considered as a national by any State under the operation of its law’.11

The introductory note to the Convention, by UNHCR, uses the language of protection. “It establishes a framework for the international protection of stateless persons and is the most comprehensive codification of the rights of stateless persons yet attempted at the international level.” The Convention points to the “profound vulnerability that affects people who are stateless.”.

In November 2011 Asylum Aid and UNHCR published their report “Mapping Statelessness in the United Kingdom.”12_{It called on the UK government to implement an accessible procedure to identify}

stateless persons and to grant them leave to remain in appropriate circumstances. In 2013 the UK introduced a statelessness application procedure which is at Part 14 of the Immigration Rules (‘the Rules’).13_{Those Rules make provision for the Home Office to recognise individuals as stateless. They}

also provide for a grant of leave to remain to stateless persons. Dependants may apply for leave to enter and to remain with the stateless person.

Data on statelessness is currently not included in the Home Office quarterly Immigration statistics.14

The problem of unreliable data on stateless persons was identified in the ‘Mapping Statelessness’ report in 2011.15_{The only published data is in UNHCR statistics.}16_{These show that there have been}

85 grants of leave since the procedure was introduced in April 2013. In the first two years of operation only 40 grants of leave to remain were made, with a 95% refusal rate.17_{We understand}

that there were additional grants during the years 2015-17. We have tried to get more up-to-date figures and a breakdown of numbers of applications and grants on a yearly basis through a Freedom of Information Request.18_{The Home Office refused the request on the basis that they intend to}

publish the data in the future.

The procedure was warmly welcomed when it was introduced, but Asylum Aid, UNHCR and others raised concerns at the outset about some elements such as the lack of access to good legal

10_{Convention on the Status of Stateless Persons 1954}

http://www.unhcr.org/un-conventions-on-statelessness.html

11_{Article 1(1) of the Convention. The definition is considered to be customary law – see UNHCR,}

‘Handbook on Protection of Stateless Persons’ (2014)

http://www.unhcr.org/dach/wp-content/uploads/sites/27/2017/04/CH-UNHCR_Handbook-on-Protection-of-Stateless-Persons.pdf

12_{Asylum Aid, Mapping Statelessness in the UK (Research Paper, 24 December 2011)}

https://www.asylumaid.org.uk/mapping-statelessness-in-the-uk/

13_{Immigration Rules, Part 14: Stateless Persons}

https://www.gov.uk/guidance/immigration-rules/immigration-rules-part-14-stateless-persons

14_{Home Office, ‘Immigration Statistics, Year Ending March 2018’ (2018)}

https://www.gov.uk/government/statistics/immigration-statistics-year-ending-march-2018

15_{Asylum Aid, Mapping Statelessness in the UK (Research Paper, 24 December 2011)}

<https://www.asylumaid.org.uk/mapping-statelessness-in-the-uk/>

16_{UNHCR, ‘Mid-Year Trends’ (June 2017)}

http://www.unhcr.org/uk/statistics/unhcrstats/5aaa4fd27/mid-year-trends-june-2017.html

17_{Numbers provided to the Law Clinic through UNHCR in June 2016} 18_See

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representation through legal aid and the absence of a statutory appeal right. We have found through our casework that these concerns were justified. The result is that decision-making is of variable quality.

The UK is ahead of many other countries in having a statelessness application procedure, but it does not treat statelessness as a protection status equivalent to refugee status or humanitarian

protection. In practice, this means that there are deficiencies in the process and in the rights associated with the grant of leave.

If the Home Office decided to treat statelessness as a protection status or equivalent, alongside refugee status and humanitarian protection, a person in the stateless application procedure would have similar entitlements to an asylum applicant. These include a right of appeal and legal aid. A person with statelessness leave would have the same rights and benefits as a refugee or person with leave to remain on humanitarian protection grounds. Notable examples of rights that those with statelessness leave do not have at present include access to home student fees and access to student finance in order to attend University, and entitlement to social housing and other benefits. The description in the introductory note to the Convention of the ‘profound vulnerability’ of many stateless people is correct. We have seen it in our casework and through it we have identified ways in which the procedure could be modified to reduce rather than reinforce this vulnerability.

The key challenges, examined in detail in this report, are:

a. Decision-making is inconsistent and at times poor. This is compounded by the lack of legal aid and the absence of a statutory appeal right. Particular problems have arisen with basic country information. It is unclear how the Home Office interprets “shared burden”, in particular when it takes steps to investigate a person’s statelessness through interviews or enquiries. Its guidance is reasonably clear but we do not always see this reflected in practice. There is a lack of Home Office guidance addressing related applications involving stateless persons. There are delays in processing claims – especially those of adults without dependent children. Cases can be outstanding for periods in excess of 20 months. b. A lack of legal aid means many applicants do not have legal representation. This makes it

difficult for people to make informed decisions about whether or not statelessness (or another) claim is most appropriate. It also means that applications are neither prepared nor evidenced as well as they could be leading to more refusals and repeat applications.

c. Lack of appeal right means that there is insufficient judicial scrutiny. Administrative review is not a sufficient remedy as it is limited in scope and conducted internally. Judicial Review does not commonly require the court to make factual findings, but the facts are often in dispute where there is a contested statelessness decision. It is also is expensive (for both sides), slow, sometimes opaque, and difficult to access.

d. We have found links between trafficking and statelessness cases. The statelessness applications process and the NRM processes do not always work well together for the benefit of stateless victims of trafficking.

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they are not exempt from charging for secondary health services and there is no provision for permission to work.

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3 The statelessness leave application procedure.

The relevant Immigration Rules are at Part 14.19_{The Home Office has produced guidance to the}

Rules,20_{which we understand will be reviewed in mid-2018. This guidance refers to, and in parts}

replicates, the UNHCR Handbook on Protection of Stateless Persons.21

Part 14 of the Immigration Rules, paragraphs 401- 405, sets out the requirements the applicant must meet to be granted leave to remain as a stateless person. Paragraph 401 replicates the definition found in the 1954 Convention.22_{Paragraph 402 sets out the criteria for excluding a person from}

recognition as a stateless person for the purposes of Part 14 of the Rules.23_{If the Secretary of State}

recognises that a person is stateless under paragraph 401 they must meet additional criteria in order to be granted leave to remain. The requirements for leave to remain are at paragraph 403. These include a requirement that the person is not ‘admissible’ to their country of former habitual residence or any country. The Home Office guidance explains admissibility as ‘admissibility for the purposes of permanent residence’.24

There are refusal criteria in paragraph 404 and these import the general grounds for refusal set out in paragraph 322 of the Rules.

If successful a stateless person will be granted a period of leave of 30 months (paragraph 405). After a period of 5 years where the most recent grant of leave was under Part 14, and providing they continue to meet the requirements of paragraph 403, a person can apply for Indefinite Leave. Liverpool Law Clinic and ILPA have published a detailed best practice guide on the procedure.25_The

electronic immigration network (EIN) has a resource page26_{which is kept up to date with case law.}

19_{Home Office, ‘Immigration Rules Part 14: Stateless Persons’ (2016)}

https://www.gov.uk/guidance/immigration-rules/immigration-rules-part-14-stateless-persons

20_{Home Office, Asylum Policy Instruction: Statelessness and Application for Leave to Remain}

(Guidance Paper, 18 February 2016) https://www.gov.uk/government/publications/stateless-guidance

21_{UNHCR, ‘Handbook on Protection of Stateless Persons’ (2014)}

http://www.unhcr.org/dach/wp-content/uploads/sites/27/2017/04/CH-UNHCR_Handbook-on-Protection-of-Stateless-Persons.pdf

22_{Convention Relating to the Status of Stateless Persons 1954}

http://www.unhcr.org/uk/protection/statelessness/3bbb25729/convention-relating-status-stateless-persons.html

23_{These are very similar to those excluding refugees from the protection of the 1951 UN Convention}

on the Status of Refugees, Articles 1D to 1F. See UNHCR, ‘Convention and Protocol Relating to the Status of Refugees’ available: https://tinyurl.com/y7hn67g7

24_{Home Office, Asylum policy Instruction. Statelessness and Applications for Leave to Remain 18}

February 2016. Para 1.4 https://www.gov.uk/government/publications/stateless-guidance

25_{Sarah Woodhouse, Judith Carter, ILPA , University of Liverpool Law Clinic, Statelessness and}

applications for leave to remain: A best practice guide (Guidance Paper, 3 November 2016)

http://www.ilpa.org.uk/resource/32620/statelessness-and-applications-for-leave-to-remain-a-best-practice-guide-dr-sarah-woodhouse-and-judi

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4 The initial application

The Rules require an applicant to make an application for leave as a stateless person on a FLR (S) form27_{(the initials refer to Further Leave to Remain (Stateless)). The form is relatively simple,}

especially when compared with other Home Office application forms. However, it is likely that many applicants will not have legal representation and the guidance attached to the form may be

misleading in places, for example it only points applicants towards dealing with statelessness and not with admissibility.28_{The application is made by post to Liverpool and is free. The form includes a}

list of the kind of evidence the applicant needs to provide (letters from embassies, etc.).

4.1 Accessing the most appropriate procedure

There is a cost in both resources and time when a person goes through both the asylum and statelessness procedure unnecessarily.

Most statelessness leave applicants have been through the asylum procedure. However a significant number of the clients we have worked with have not claimed asylum or have abandoned their claim at an early stage. Some of these clients may have been able to make a claim that they are refugees under Article 1D of the 1951 Convention, which provides for automatic acquisition of refugee status where UNRWA protection has been lost.29

There are some cases where an application for statelessness leave is the more appropriate procedure, but there is a concern that some people are only making that application after their asylum claim fails. We have cases which have succeeded and were strong applications in the statelessness procedure, but which were never likely to succeed in the asylum procedure. In the article 1D cases that we have dealt with there have factual, evidential, legal or other procedural reasons for not advising clients to claim asylum for that reason. We have referred out some clients to make such claims.

There are a number of reasons why people may go through the asylum process where the statelessness application process would be more appropriate:

 Where a person cannot return to their home country the assumption is likely to be that making a protection claim is appropriate (asylum or Article 3 ECHR). In many cases this is correct, but some legal advisers are not routinely considering statelessness as an option.  In many cases a delay in claiming asylum would have negative consequences for a person’s

credibility should they later need to rely on an asylum claim - so the safest advice is to apply for asylum first.

 Advice, assistance and representation regarding Part 14 of the Rules is not in scope of legal aid. Exceptional Case Funding30_{(ECF) may be available in some cases but someone must}

27_{Application for leave to remain as a stateless person and a Biometric Immigration Document}

Version 11/2016. https://www.gov.uk/government/publications/application-to-extend-stay-in-uk-as-stateless-person-form-flrs

28_{See section 9 FLR(S)}

29_{Article 1D, UN Convention relating to the Status of Refugees,}

http://www.refworld.org/docid/3be01b964.html; B.6.b best practice guide

30_{Legal Aid, Sentencing and Punishment of Offenders Act 2012, s 10. Also see}

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apply for it, which is itself time consuming. Were legal aid made available for statelessness applications on the same basis as for protection claims it is more likely that lawyers would consider and advise on it as an alternative to an asylum claim.

 Where a person is destitute or homeless and urgently requires accommodation. Support used to be available under section 4(1) of the Immigration and Asylum Act 1999 but this was repealed in January 2018.31_{Whilst it is possible for the Home Office to provide support}

to statelessness applicants under paragraph 9, Part 1 of Schedule 10 to the Immigration Act 201632_{it has not been made clear if or how this will be done. Support is available for an}

asylum seeker or failed asylum seeker under certain conditions.33

 There is a lack of awareness of the statelessness application procedure both within the Home Office and more generally. This means that people may not be directed to the procedure from the Asylum Screening Unit or other parts of the Home Office. Access to legal aid would make it more likely that potential applicants would get good legal advice at an early stage; and that fewer claimants would go through the asylum process.

 The asylum procedure has safeguards –crucially a right of appeal. Even if the appeal is unsuccessful findings of fact made in an asylum appeal may be useful to a person who subsequently makes a claim under Part 14.

 Refugee status and humanitarian protection leave provide a higher level of associated rights (e.g. student loans). This makes it a more attractive process for most applicants even if it is not the most appropriate.

If potential applicants were able to access the statelessness application procedure more easily, with fewer disadvantages as compared to asylum seekers, there would be no advantage in people taking a circuitous route via the asylum procedure.

As the statelessness application procedure becomes better known, we hope that this will be a diminishing problem. We are aware that the Home Office is amending the leaflet given to new asylum applicants to refer to the statelessness application procedure and this is welcome.

Practitioners in England and Scotland have participated in training provided by ILPA,34_{the Law Clinic}

and Asylum Aid35_{on the statelessness determination procedure. However, potential applicants need}

good advice to make well-informed decisions about which process is right for them. Unless legal work regarding applications under Part 14 is brought within scope of legal aid this advice is unlikely to be widely available and statelessness applications will remain a marginal area for many legal practitioners.

31_{Section 4(1) of the 1999 Act was repealed on the 15 January 2018 by the Immigration Act 2016.}

See Home Office, ‘Support Provided Under section 4(1) of the Immigration and Asylum Act 1999: Handling Transitional Cases’ (Guidance Paper, 16 February 2018)

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file /682498/section-4_1_-handling-transitional-cases-v1.0ext.pdf (accessed 25 June 2018

32_{http://www.legislation.gov.uk/ukpga/2016/19/schedule/10/enacted (accessed 25 June 2018)} 33_{Immigration and Asylum Act 1999, s 4 https://www.legislation.gov.uk/ukpga/1999/33/section/4;}

Asylum Support Appeals Project, Section 4 Support (Factsheet, April 2016), available at

<https://www.asaproject.org/uploads/Factsheet-2-section-4-support.pdf> (accessed 25 June 2018)

34_{See http://www.ilpa.org.uk/ (accessed 25 June 2018)}

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Home Office fails to refer family to statelessness leave procedure

A stateless Palestinian man born and formerly resident in the UAE, with his family as dependants, applied for asylum in late 2015. He was unable to articulate a fear of persecution at the screening interview and the officer advised him that asylum was not the right claim so he withdrew it. He took further advice and decided that he had no option but to claim asylum as his particular circumstances meant that the family would not be permitted to enter the country they had left. He made further submissions and then decided to attempt voluntary return. When it transpired that voluntary return was impossible he made further submissions again. The case went in and out of further submissions for a period in excess of 12 months. A solicitor drafted very weak further submissions, which did not amount to an asylum claim and made no reference to statelessness.

The Home Office papers reveal that officials recognised throughout 2016 that issues of

statelessness arose. Despite this and numerous contacts with the Home Office, officials did not refer the family to the statelessness determination procedure.

With the help of the Law Clinic, in December 2016 the client made a claim for leave to remain as a stateless person with his family as dependants. The claim was decided relatively quickly (within 7 months) and leave to remain under Part 14 was granted.

The client and his family received support for a period of 18 months from social services. This involved a move between two houses which caused disruption to the children’s education. The welfare of all the family members was seriously affected.

Had the family made a statelessness application at an earlier stage it is likely that their case would have been resolved earlier. This would have resulted in an earlier grant of leave, lessened

disruption to the children’s education and minimised the resource implications for the Home Office and the local authority social services department.

Judge’s findings in an asylum appeal

A Palestinian (born and formerly resident in a Gulf Country) man’s asylum claim was refused. He appealed. The appeal was dismissed but the Immigration Judge, in dismissing it, made findings that he is stateless and unable to return to the country of his former habitual residence. Although his appeal was dismissed, these findings are extremely valuable to the client. They should make determination of his application for leave to remain under Part 14 more straightforward. The appeal determination is a useful back up in making a claim within a procedure which does not itself have a right of appeal.

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4.1.1 Recommendations – the initial application

We recommend that:

 Legal aid is made available for advice and representation on statelessness applications on the same basis as for asylum and humanitarian claims so that it becomes a mainstream part of legal practice.

 Home Office accommodation and support is made available for statelessness applicants who are destitute irrespective of whether or not they have previously made an asylum claim. The P family are Palestinian and formerly resident in a Gulf country. They described a good life in that country and did not consider themselves victims of persecution. Their case was that they could not return to their home country as they no longer had a valid Iqama (residence document that depends on employer sponsorship). They felt uncomfortable making an asylum claim. They told their lawyer this but were advised to continue with asylum. They believed that this was their only option. The Home Office refused their asylum claim. They appealed the refusal but on the advice of the Judge, they withdraw their appeal.

The family then made an application for leave to remain as stateless persons. The Home Office refused it. Following a letter threatening legal action the Home Office agreed to reconsider and the family was granted leave to remain under Part 14.

The family lived in Home Office-provided accommodation during the period of their asylum claim and appeal, throughout the course of their statelessness application and until they were granted leave to remain. They received Legal Aid Agency funding for their asylum claim and aborted appeal.

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5 Decision making

The quality of Home Office decision making is variable. This problem extends to other areas of Home Office36_{but in statelessness cases the lack of an appeal right against refusals means there is little}

judicial scrutiny. Many applicants do not get legal advice and are unrepresented because

statelessness is out of scope of legal aid. This means that decision makers are not accountable and there is no emerging body of case law similar to country guidance. If legal aid were available it is likely that applications under Part 14 would be better prepared and decision makers pointed to relevant evidence with reference to the legal framework. It may also result in fewer innappropriate and repeat applications.

This section covers the problems arising from the lack of a systematic approach to decision-making; limited consideration of related matters such as deportation and family rights; poor application of the burden of proof; failure to interview the applicant or make enquiries of their state authorities; and delays at all stages.

We have attempted to understand the reasoning behind decisions by making subject access requests37_{following both grants and refusals of leave under Part 14 of the Rules. There are few}

notes relating to the decisions on the file and nothing which elaborates on the reasons given in the refusal letter. In some there is virtually nothing apart from a bullet point summary of the refusal letter.

Our observations on decision-making are on the basis of the case facts as we understand them, the reasoning that we see from the Home Office decision letter and the limited information on the Home Office file.

5.1 Lack of a systematic approach which reflects the structure of the Rules

There are two distinct elements in the Immigration Rules. These are: -

 Consideration of statelessness: should the person be recognised as stateless because they fall within the definition?

 Consideration of a grant of leave: should the person be granted leave to remain, do they meet the criteria and are there any reasons why leave should be refused?

The decision-maker can fail to assess the two elements separately and sequentially, sometimes entirely failing to determine statelessness. This is problematic as a person may be stateless (so should be recognised as such) but not eligible for a grant of leave to remain under Part 14 for some reason. This distinction may have a practical importance in another immigration application such as an application for revocation of a deportation order.

36_{Kate Lyons, Kirstie Brewer, ‘A Lottery: Asylum System is Unjust, say Home Office Whistle-blowers’}

The Guardian (London, 11 February 2018)

https://www.theguardian.com/uk-news/2018/feb/11/lottery-asylum-system-unjust-home-office-whistleblowers?CMP=share_btn_tw

37_{A procedure whereby a person could request a copy of their Home Office file under the Data}

Protection Act 1998; now access to data is governed by the Data Protection Act 2018 and the General Data Protection Regulation (EU) 26/679

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5.2 Where there is a deportation order or decision to deport

A person who is subject to a deportation order or a decision to make one cannot be granted leave as a stateless person (paragraph 404(c) and 322(1B) of the Rules).38_{That said, they may be a stateless}

person as defined in paragraph 401 of the Rules. It is likely that the issues of statelessness and admissibility will be central to consideration of any request for revocation of the deportation order,39

whether or not such a request has been made alongside the Part 14 application. Many applicants without a legal representative will not appreciate that they should make a revocation application.

Where there is a decision to deport or a deportation order, a statelessness application should, ideally, be accompanied by a request to revoke the deportation order.40

We have seen decisions where the Home Office does not deal with the issue of statelessness at all on the basis that the person is subject to a deportation order or a decision to deport. The decision maker jumps immediately to a refusal of leave to remain on the basis of paragraph 404(c) of the rules (requirement to refuse while deportation proceedings are pending) without making a decision on recognition.

We set out the current process for the Home Office consideration of an application for statelessness leave where there are deportation proceedings, and a suggested alternative procedure, to illustrate

38_{Part 14, paragraph 404 of the Rules refers to the general grounds of refusal which are set out in}

paragraph 322 of the Rules. Sub-paragraph 322(1B) prevents any grant of leave to remain being made where the application is made while deportation proceedings are pending.

39_{An application for revocation of a deportation order is made under paragraph 390 of the Rules}

which lists the criteria for consideration of such an application.

40_{Sarah Woodhouse, Judith Carter, ILPA , University of Liverpool Law Clinic, Statelessness and}

applications for leave to remain: A best practice guide (Guidance Paper, 3 November 2016) 45 http://www.ilpa.org.uk/resource/32620/statelessness-and-applications-for-leave-to-remain-a-best-practice-guide-dr-sarah-woodhouse-and-judi (accessed 25 June 2018)

In December 2016 the Law Clinic submitted an application for revocation of a deportation order and also an application for leave to remain under Part 14. Within two months the Home Office refused the application for leave to remain as a stateless person on the basis of paragraph 404(c) and 322(1B) of the Rules.

The refusal states:

“In light of all the evidence above, substantive consideration has not been given to your claim that you are a stateless person or meet the requirements of paragraph 403 of the Immigration Rules. You do not qualify for leave to remain under paragraph 404 of the Immigration Rules as you are subject to a deportation order signed on [date].”

“The application to revoke the deportation decision has been sent to criminal casework directorate.”

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the recommendation we make. This is the current procedure:

We would suggest an alternative approach:

There are Immigration Rules (paragraphs 398 to 399), legislation (s117 Nationality Immigration and Asylum Act 2002) 41_{and guidance (on criminality and Article 8 European Convention on Human}

Rights) 42_{which guide the Home Office and the courts in interpreting the UK’s human rights}

obligations in relation to people subject to deportation proceedings. None of these refer to statelessness.

Where a person is stateless and where they cannot be removed to another country because no country will document them, there will be no prospect of enforcing a deportation order, so it remains an impractical measure. Maintaining the deportation order and refusing to give the person permission to stay in the UK may breach Article 8 ECHR in these circumstances. It leaves the person

41_{S117 Nationality, Immigration and Asylum Act 2002 as amended by s19 Immigration Act 2014} 42

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file /594709/Article-8-criminality-cases-v6.0.pdf (accessed 25 June 2018) and

https://www.gov.uk/government/publications/who-needs-an-entry-clearance-ecb04/ecb04-who-needs-an-entry-clearance#ecb432-how-can-a-deportation-order-be-revoked (accessed 2 July 2018)

Person applies for leave to remain as a stateless person and for revocation of a deportation order (DO). The application is made to the Status

Review Team.

Status Review Team refuses FLR(S) application on basis of

404(c) and 332(1B). Status Review Team refers application for

revocation of DO to Criminal Casework Directorate (CCD) for

consideration.

We do not know what happens in the CCD. But we hope that the

application will be sent back to the Status Review Team

for a determination on statelessness and

admissibility.

Person applies to

Status Review Team

for leave to remain

as a stateless

person and for

revocation of a

decision to deport.

Status Review Team

determines

statelessness:

should the person

be recognised as

stateless? And

admissibility: Is the

person admissible

to any country?

Status Review Team

refers the

application for

revocation of DO to

CCD.

CCD considers

revocation of DO

with reference to

the determination

of statelessness,

admissibility and

other relevant

factors.

If DO is revoked

consideration and

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17

in limbo without legal status, potentially for the rest of their lives, subject to the hostile or compliant environment.

We think Home Office caseworkers should be directed in the guidance (on criminality and Article 8 ECHR) to such considerations arising from statelessness (which includes ‘admissibility’ under Part 14 of the Rules) that are relevant to whether or not to make or maintain a deportation order.

5.3 Shared burden of proof

The Home Office has a ‘shared burden’ in assisting the applicant to evidence their claim in

applications relating to statelessness status.43_{The shared burden reflects the particular challenge in}

statelessness cases where the applicant often has to prove a negative (that he or she is not a national of x country or cannot legally enter and live in y country). There is a clear reference to the role of the decision maker in assisting with this in the UNHCR handbook.44_{It is established in the UK}

through case law.45_{The Secretary of State accepts that s/he has a role to play. Home Office}

Guidance46_says:

“In all cases, the burden of proof rests with the applicant, who is expected to cooperate with the caseworker to provide information to demonstrate they are stateless and that there is no country to which they can be removed. Paragraph 403(d) of the Rules requires applicants to obtain and submit all reasonably available evidence to enable the Secretary of State to determine whether they are stateless and whether they qualify for stateless leave. It is not enough, for example, for the applicant to rely upon a simple and unsupported assertion of statelessness, or to provide no explanation or evidence in support of the application, particularly where this runs contrary to previously available information.

However, caseworkers must make a distinction between applicants who show no interest in

genuinely co-operating or providing supporting information and those who may be unable to submit much evidence or information because, for example, they do not have the resources or knowledge to obtain information about the laws of a given State. In such circumstances, where the available

information is lacking or inconclusive, the caseworker must assist the applicant by interviewing them, undertaking relevant research and, if necessary, making enquiries with the relevant authorities and organisations.” [authors’ emphasis]

It is very unclear how the Home Office implements this Guidance in practice. The Home Office file notes have given us little insight. We have seen correspondence or communication with embassies and High Commissions in file notes. But we find that these (even if not concluded for a significant period or at all) are not mentioned in the reasons for refusal letter or the bullet point summary of this letter. We have managed to obtain from the Home Office copies of their records of contacts

43_{See the equivalent duty to cooperate in asylum cases: CJEU - C-277/11 M.M. v Minister for}

Justice, Equality and Law Reform, Ireland, Attorney General, paras 65 and 66, https://tinyurl.com/ydbnv4mb

44_{UNHCR, ‘Handbook on Protection of Stateless Persons’ (2014) Para 89}

45_{This approach was endorsed in the cases of R (on the application of Semeda) v Secretary of State}

for the Home Department (statelessness; Pham [2015] UKSC 19 applied) IJR [2015] UKUT 658 (IAC).

(Guidance Paper, 18 February 2016)

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18

with embassies when we have been able to insist because the applicant knew it existed. We do not know if there is third party correspondence which is not included in the papers we receive through subject access requests.

5.4 Interviews and further enquires

The Home Office should not refuse a claim for want of information that they could gain through an interview or further enquiry. The Home Office Guidance47_says:

“An interview will normally be arranged to assist the applicant to fully set out their case for being considered stateless and to submit any other relevant evidence. In other instances, questions about evidence submitted as part of the application may be resolved through additional written

communications. Where the applicant does not complete all relevant sections of the application form, caseworkers may request the missing information by writing to the applicant or their legal representative if they have one.

A personal interview will not be required if there is already sufficient evidence of statelessness, it is clear that the individual is not admissible to another country, and is eligible for leave to remain on this basis.

An interview will not be arranged, and the application may be refused, where recent and reliable information including the applicant’s previous evidence or findings of fact made by an immigration judge, have already established that the applicant is not stateless or is clearly admissible to another country for purposes of permanent residence and where no evidence to the contrary has been provided.”

The Guidance is useful and appropriate, but the problem arises where caseworkers are reluctant to interview when they could resolve problems by doing so: where a refusal is contemplated it is more efficient to enquire before refusing. The resource implications of this can be considerable. A decision to refuse may lead to an Administrative Review, Judicial Review and/or a further statelessness application.

We have seen relatively few interviews over the period of the project.48_{This may be because the}

Home Office has sufficient information to make a decision. In some cases, this is correct. We are not

47_{Home Office, Asylum Policy Instruction: Statelessness and Applications for Leave to Remain}

(Guidance Paper, 18 February 2016) Section 4.2

<https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/fil e/501509/Statelessness_AI_v2.0__EXT_.pdf> (accessed 25 June 2018)

48_{Under the Home Office guidance in effect May 2013 to February 2016 it was obligatory for the}

Home Office to interview before refusing (section 2.2, https://tinyurl.com/yag5pxz9, archived, accessed 28 June 2018)

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19

suggesting that the Home Office needs to interview or write out for further information in every case. Where the applicant is not represented it is more likely that the Home Office will need to make some form of further enquiry.

It has been rare for the Home Office to make requests to us for further information to help establish a claim in spite of the very clear suggestion in the Guidance to Home Office caseworkers to do this. Likewise, it is unusual for the Home Office to make enquiries of another body – for example an embassy. Where caseworkers do make enquiries those should be focussed on the facts of the case rather than relying on templates which don’t address the relevant legal tests.49

49_{Eg. letter code ICD 1100 which asks ‘What is UNRWA?’ and ‘What assistance does UNRWA}

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6 Poor understanding of the objective evidence

This is one of the most serious problems with decision making in the statelessness application procedure. We have seen reasoning in decisions which shows a lack of understanding of the political situations in the countries from which stateless people originate. Our experience of this poor

understanding has been particularly in relation to Palestinians. The Home Office Guidance says: ‘The great majority of Palestinians are stateless. Following the war in 1948, more than 750,000 Palestinians were displaced and took refuge in neighbouring Arab States and in the lands now occupied by Israel in 1967. Over the succeeding years, the number of Palestinians worldwide has grown to an estimated 8 – 9 ½ million people. While the Palestinian population theoretically has

had a state since the approval of UN General Assembly Resolution 1984 (1947), their claim to a right of return to their homes has been disputed by Israel. Apart from Jordan, neighbouring Arab countries have not granted citizenship to the Palestinian refugee population in their countries, leaving around 4 million individuals as de jure stateless persons.’50_{[authors’ emphasis]}

Despite the Home Office Guidance giving this as a clear starting point we have seen decisions on Palestinian cases which do not reflect this understanding of the Palestinian situation and particularly that of Palestinians who have never been resident in the Occupied Palestinian Territories. If our caseload is representative, these make up a significant proportion of cases in the statelessness application procedure. Surprisingly, decision makers in the team do not seem to have access to adequate information on the issues faced by the people in the Palestinian diaspora. Quality control measures in the Home Office do not pick up the systemic problems decision makers have in

understanding Palestinian claims.

Our Palestinian clients have lived with ‘the right to return’51_{all their lives. This is a right or aspiration}

that has not been realised. The pain they feel is compounded by the Home Office suggestion that they can “return” if they want or that it is a minor matter.

50_{United Kingdom: Home Office, Operational Guidance Note: The Occupied Palestinian Territories,} 19 March 2013, Occupied Palestinian Territories OGN v4, available at:

<http://www.refworld.org/docid/5149944f2.html> (accessed 25 June 2018). There is more recent Guidance on the OPT but the OGN of 2013 deals particularly with the question of statelessness.

51_{See <http://www.badil.org/en/publication/survey-of-refugees.html>}

The Palestinian right to return

The Palestinian right to return is the political position or principle that Palestinians have a right to return to the land and property they or their forebears left behind or were forced to leave in what is now Israel and the Palestinian territories as part of the 1948 Palestinian exodus - a result of the 1948 Palestine war - and due to the 1967 Six-Day War.

The right applies both to first generation Palestinian refugees and their descendants. The right to return is supported by the international community by UNGA resolution 194

(https://unispal.un.org/DPA/DPR/unispal.nsf/0/C758572B78D1CD0085256BCF0077E51A

(accessed 25 June 2018). It remains an aspiration that has not become a reality. Around 5 million Palestinians worldwide cannot return although they claim that right.

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The examples in the boxes focus particularly on Palestinian cases as those are where we have found particular problems over the past two years. This is consistent with other findings that poor decision-making is a feature across the Home Office. The Law Society has commented on the numbers of immigration and asylum claims where decisions are overturned on appeal.52_{Nearly 50% of Home}

Office decisions are found to be wrong by an Immigration Judge. There is no right of appeal in a stateless case and so none of these are statelessness decisions but we have no reason to believe that decision making is any better in applications for statelessness leave than it is in other areas where there are appeal statistics.

52_{‘Serious Flaws in UK Immigration System, Law Society Warns’ BBC (12 April 2018),}

<http://www.bbc.co.uk/news/uk-politics-43737542>; ‘Failures in UK Immigration and Asylum Undermine the Rule of Law’ (12 April 2018), <http://www.lawsociety.org.uk/news/press-releases/failures-in-uk-immigration-and-asylum-undermine-the-rule-of-law/> (accessed 20 June 2018)

Palestinians from Gulf countries

Second generation stateless Palestinians who have never lived in (or been to) the OPT have few rights in the Gulf countries in which they were born. These Palestinians now have children and grandchildren - further generations of stateless people.

The large numbers of Palestinians in Gulf countries - UAE, Saudi Arabia, Kuwait - often have permission to reside based only on a work permit or Iqama. This means they and their dependants can only reside lawfully as long as they remain employed. If a Palestinian in this situation loses their job or if a contract is not renewed then that person no longer has the right to live lawfully in the respective country.

In Gulf countries, there is a drive towards getting more nationals, including women, into the workforce. This means that it is becoming less attractive for employers to continue to employ well-qualified migrants – especially in professional sectors. As these economies squeeze Palestinians out of work they also squeeze Palestinians out of the minimal rights they have as non-national residents. This means that Palestinians in Gulf countries are especially vulnerable to loss of status. Like all migrant workers they might lose their job and right to reside at any point. But unlike other migrant workers they have nowhere else they can go.

Palestinian passports.

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The Home Affairs select committee report on the delivery of Brexit53_{comments on non-EU decision}

making;

“69. The evidence we have received in this inquiry has revealed a picture of Home Office teams struggling with a lack of resources, high turnover of staff and unrealistic workloads. A lack of

experienced staff and pressure to meet targets has meant that mistakes are being made that have life-changing consequences. A lack of first-line supervision is leading to mistakes not being

identified or rectified and effective feedback to improve learning from errors is absent. Cases are

being moved outside of service standards often with little or no justification, causing delay and frustration for the applicant and too frequently the first time a case receives adequate attention is when it goes to court. We note that the number of cases going to court has fallen but this is largely because access to justice has been restricted, not because initial decisions have improved. This is an unacceptable way to run an immigration system.” [authors’ emphasis]

6.1 Where a person has an Article 8 ECHR (or other claim) as well as a statelessness

claim.

A person may meet the requirements for a grant of statelessness leave under Part 14 but also have a claim for leave to remain under Appendix FM of the Rules (family and private life Rules) or Article 8 of the European Convention on Human Rights (right to family and private life, ‘ECHR’). Paragraph 34BB of the Rules (introduced in January 2018), states that an applicant cannot have more than one application pending at any one time.

The position of the statelessness team has, in the past, been that they will only consider the statelessness leave application and that any other application should be made separately as a paid application on the correct form and to the relevant team. As it is no longer possible to do this concurrently we would suggest that representations and evidence on Appendix FM, Article 8 ECHR (or other) should be made with the statelessness application. The Home Office should be pressed to consider them.

Very importantly, following the case of Ahsan v The Secretary of State for the Home Department [2017] EWCA Civ 200954_{an Article 8 claim made with or as part of a statelessness application should}

now give rise to a right of appeal on the human rights element where the application is refused. The appeal will be limited to the question of whether there would be a breach of Article 8 ECHR, but it is likely that there will be relevant factual findings on statelessness as part of the determination – see the next section.

53_{‘Home Office Delivery of Brexit: Immigration’ (2018) available:}

<https://publications.parliament.uk/pa/cm201719/cmselect/cmhaff/421/42104.htm#_idTextAnchor 042> para 69 (accessed 20 June 2018)

54_{Ahsan v Secretary of State for the Home Department (Rev 1) [2017] EWCA Civ 2009 (05 December}

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6.2 Statelessness as an Article 8 ECHR right

It has been argued that a grant of leave to remain as a stateless person is an Article 8 ECHR right.55

The authority for this comes from a series of cases before the European Court of Human Rights56

which deal with the impact of statelessness, and related lack of documentation, on a person’s social identity and every day functioning in society. If these arguments are clearly articulated in an

application for statelessness leave it may then be possible to argue for an appeal right if the

application is refused. Again, this appeal (and a subsequent grant of leave) will be confined to Article 8 ECHR issues. It may be that findings made by an Immigration Judge in this context can be used in a statelessness application. We have raised this in applications on which we have not yet received decisions.

6.3 Where a stateless person is entitled to Humanitarian Protection

Immigration lawyers will be familiar with the approach taken to stateless persons in the asylum process. Most practitioners have dealt with the claims of Kuwaiti Bidoons, Palestinians and others who may be recognised as stateless refugees in the UK. It is also possible (though perhaps less common) for a stateless person in the UK to be entitled to Humanitarian Protection. An example of this is a stateless Palestinian who was born and lived in Libya before coming to the UK. A detailed explanation is in the text box below. Following the case of ZMM (Article 15(c)) Libya CG [2017] UKUT 263 (IAC) 57_{that person should be granted Humanitarian Protection in the UK.}

There is a lack of clarity in the Home Office guidance on grants of Humanitarian Protection regarding the correct identification of the relevant country of return for a stateless person.

The wording of the Refugee Convention on the relevant country of return is clear:

“….. or who, not having a nationality and is outside of the country of his former habitual residence is unable or, owing to such fear, unwilling to return to it.”58

The provisions in the Immigration Rules on Humanitarian Protection59_{which are intended to reflect}

the provisions in subsidiary protection in Articles 15-19 of the Qualification Directive60_{do not deal}

with stateless persons explicitly. Paragraph 339c of the Immigration Rules says:

“…. substantial grounds have been shown for believing that the person concerned, if returned to the

country of return, would face a real risk of suffering serious harm and is unable, or, owing to such

risk, unwilling to avail themselves of the protection of that country;…. “

55_{‘Strategic Litigation: An Obligation for Statelessness Determination Under the European}

Convention on Human Rights?’ (2014)

<https://www.statelessness.eu/sites/www.statelessness.eu/files/attachments/resources/ENS%20Di scussion%20Paper_September%202014.pdf>

56_{Hoti v Croatia (63311/14) [2018]; Kim v Russia (44260/13, 2014); Genovese v. Malta (53124/09,}

2011); Smirnova v. Russia (46133/99; 48183/99, 2003)

57_{ZMM (Article 15(c)) Libya CG [2017] UKUT 263 (IAC) (28 June 2017)}

<http://www.bailii.org/uk/cases/UKUT/IAC/2017/263.html>

58_{Article 1 of the 1951 Convention on the Status of Refugees, as amended by the 1967 Protocol:}

<http://www.unhcr.org/uk/3b66c2aa10> (accessed 25 June 2018)

59_{Paragraph 339Ciii Immigration Rules}

60_{Council Directive 2004/83/EC (2004)}

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The Qualification Directive Article 2(e) clarifies the correct approach in determining a claim for subsidiary protection for a stateless person. This mirrors the Refugee Convention and reads: “…. if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence…..”)61

The Home Office Guidance on Humanitarian Protection states that:

“…. the broad principles that apply to considering asylum claims may apply equally to considering whether or not a person qualifies for Humanitarian Protection (HP).”62

This is logical. If that were not the position, a stateless Palestinian whose country of former habitual residence was not the Occupied Palestinian Territories would be denied a grant of humanitarian protection in the UK. That cannot be the intention. It may help Home Office decision makers (and applicants) if the Guidance on Humanitarian Protection could specifically deal with the ‘country of return’ as it relates to a stateless person.

6.4 Time, delay and expedition

Our understanding from officials at the Home Office is that they aim to make a decision on a statelessness application within 12 months. The UNHCR Handbook points to the importance of states dealing with applications within a reasonable timescale. The Handbook suggest a period ranging from a few months where a claim is well evidenced and manifestly well founded63_{to six}

months in other cases and in exceptional cases 12 months.64

During 2017 the Home Office expedited some cases involving dependent young children. In a few cases the team made a decision in around 6 months. This is welcome, as is the fact that it is possible to communicate with the team about time scales.

61_{Ibid, Chapter 1, Article 2(e)}

<http://www.asylumlawdatabase.eu/en/content/en-qualification-directive-directive-200483ec-29-april-2004#Art%202%20QD>

62_{‘Humanitarian Protection’ (2017)}

<https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/fil e/597377/Humanitarian-protection-v5_0.pdf>

63_{‘Handbook on Protection of Stateless Persons’ (2014), para 74} 64_{Ibid, para 75}

KM is a second generation Palestinian who had been born and lived all his life in Libya. The Home Office has previously accepted that he is a stateless Palestinian from Libya. He made a claim for Humanitarian Protection based on the country guidance case of ZMM Libya.

The Home Office refused his claim. The decision-maker’s view was that ZMM did not apply as KM is a Palestinian national. They accepted as accurate evidence which shows KM is unable to enter the Occupied Palestinian Territories (OPT) because he does not have an ID card and will not be able to get one.

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25

We have other cases, including some involving children, which have been outstanding for a period in excess of twelve months: children are dependent on the main applicant as a family member but not in need of leave. The Home Office Statelessness Guidance65_{is that expedition in a child’s best}

interests should be considered whether or not the child is a party to the application. “The statutory duty to children includes the need to demonstrate that applications are dealt with in a timely and sensitive manner where children are involved. In accordance with the UN Convention on the Rights of the Child (UNCRC) and the Supreme Court judgment in ZH (Tanzania) (FC) (Appellant) v SSHD, the best interests of the child are a primary consideration, although not necessarily the only

consideration, when making decisions affecting children. This applies whether the child is the direct subject of the application, or an adult applicant is the primary parent or guardian of a child in the UK, or has genuine and subsisting family life with a child in the UK.”

Historically, our clients have waited over two years for a decision even in cases where there are no complicating factors.

Many applications are made by single adult men who cannot make any specific case for expedition. These are generally not dealt with within 12 months. Our current experience is of cases remaining outstanding after 18-20 months. Unlike in asylum and humanitarian protection claims there is no provision for a grant of permission to work at any time while the application is pending.

Some of these single male applicants have already been living in ‘limbo’ for years – attempting to return to their ‘home’ country and making multiple attempts to do so. Delays in decision-making means a prolonged period of uncertainty, contrary to the purpose of the procedure and the UNHCR Handbook.66_{For some people the conditions they experience whilst waiting for a decision in the UK}

replicate those in their country of origin. The European Court of Human Rights noted this is in Hoti v Croatia67_{suggesting that an application from a ‘stateless migrant’ is a distinct from other migrants}

because of the ‘special features’ arising from statelessness.68

The period of leave granted is 30 months, followed by a further period of 30 months. Removing one of these grants of leave, and giving a grant of leave of 5 years would free the team up from dealing with renewal applications.69_{Curtailment is still available to the Home Office, if needed, under}

paragraph 406 of the Immigration Rules.

(Guidance Paper, 18 February 2016) Page 6

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file /501509/Statelessness_AI_v2.0__EXT_.pdf

66_{Ibid, para 75}

67_{Hoti v Croatia (63311/14) [2018] <https://hudoc.echr.coe.int/eng#{"itemid":["001-182448"]}}

https://www.statelessness.eu/blog/hoti-v-croatia-landmark-decision-european-court-human-rights-residence-rights-stateless-person>

68_{Ibid, paras 131-141}

69_{House of Commons, Home Office Deliver of Brexit: Immigration (Home Affairs Select Committee,}

2018), para 77

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26

6.4.1 Recommendations – decision making

In order to improve the quality of decision making in statelessness cases, as well as overall efficiency, we recommend that: -

 There should be a statutory right of appeal70_{to the Tribunal in statelessness cases.}

 Legal aid is made available for advice and representation on statelessness applications on the same basis as other ‘protection’ claims so that it becomes a mainstream part of legal practice.  Decision makers use a template or framework which requires decision makers to approach

and record decision making in a systematic way: -

a. A determination of statelessness (paragraphs 401 and 402). b. A decision on leave (paragraph 403 - 405).

c. A decision on revocation of deport and leave (paragraph 390).

 Effective quality assurance measures and regular training are put in place for Home Office decision makers, particularly on country information for key countries.

 The duration of statelessness leave is extended to 5 years consistent with the leave to remain granted to refugees and those with humanitarian protection.

 That Home Office guidance on Humanitarian Protection is amended to make it clear that, as for an asylum claim, where the claimant is stateless, the relevant country of return is the country where the person was formerly habitually resident.

70_{Nationality, Immigration and Asylum Act 1998, s 82}

http://www.legislation.gov.uk/ukpga/2002/41/section/82

BBB is a stateless Palestinian from Gaza. He has no Palestinian passport or ID card and no means to acquire these. The Home Office is providing section 4 support on the basis that he is unable to return to Gaza for reasons beyond his control – namely the accepted lack of documentation. He has been in this situation for 7 years. After being referred to the Law Clinic by a London based NGO he made an application for leave to remain in July 2017 and is awaiting the decision. These years in limbo have taken a toll on his mental health and he has been unproductive and unable to work over this period.

Effect of delay

BC made an application for leave to remain as a stateless person in September 2016. His claim has been outstanding for 20 months.

Statelessness in Practice: Implementation of the UK Statelessness Application Procedure

STATELESSNESS IN PRACTICE:

IMPLEMENTATION OF THE UK

STATELESSNESS APPLICATION PROCEDURE

Johanna Bezzano and Judith Carter

3 July 2018

Acknowledgements

Statelessness in Practice: Implementation

of the UK Statelessness Application

Procedure

Table of Contents

1

Background and objectives of the research

2

Introduction and key challenges

3

The statelessness leave application procedure.

4

The initial application

4.1

Accessing the most appropriate procedure

4.1.1

Recommendations – the initial application

5

Decision making

5.1

Lack of a systematic approach which reflects the structure of the Rules

5.2

Where there is a deportation order or decision to deport

Person applies to

Status Review Team

for leave to remain

as a stateless

person and for

revocation of a

decision to deport.

Status Review Team

determines

statelessness:

should the person

be recognised as

stateless? And

admissibility: Is the

person admissible

to any country?

Status Review Team

refers the

application for

revocation of DO to

CCD.

CCD considers

revocation of DO

with reference to

the determination

of statelessness,

admissibility and

other relevant

factors.

If DO is revoked

consideration and

5.3

Shared burden of proof

5.4

Interviews and further enquires

6

Poor understanding of the objective evidence

6.1

Where a person has an Article 8 ECHR (or other claim) as well as a statelessness

claim.

6.2

Statelessness as an Article 8 ECHR right

6.3

Where a stateless person is entitled to Humanitarian Protection

6.4

Time, delay and expedition

6.4.1

Recommendations – decision making